Does this strike you as an overly technical reason to reverse the case? What, exactly, would make the new trial different, except for the prosecutor standing up and formally reoffering the evidence?

Mendez v. State

(Tex.App. Dist.3 06/02/2006)
Bea Ann Smith, Justice
03-04-00207-CR

ON MOTION FOR REHEARING
OPINION

Our opinion and judgment issued on May 4, 2006, are withdrawn, and the following opinion is substituted.

A jury found appellant Daniel Ray Mendez guilty of aggravated assault and assessed punishment, enhanced by a previous felony conviction, at imprisonment for twenty years. See Tex. Pen. Code Ann. � 22.02 (West Supp. 2005).

...

Enhancement Procedure

The State's only punishment witness was a police officer who identified appellant's fingerprints in the penitentiary records introduced by the State to prove Mendez's two previous non-sequential felony convictions. After the State rested, defense counsel brought it to the court's attention that Mendez had not entered his plea to the enhancement allegations. When the court said, "We'll just do it now," Mendez objected that it was too late and asked the court for a "directed verdict . . . that this enhancement provision is not applicable." The objection and motion were overruled, the State read the enhancement allegations, and Mendez entered his plea of not true before the jury. The officer's testimony was not reoffered or stipulated. Mendez now contends that the evidence properly before the jury does not support the jury's finding that he had been previously convicted.

It has long been the rule that the reading of the enhancement allegations and the entry of the defendant's plea thereon are mandatory, and that no issue is joined between the State and the defendant with respect to the defendant's prior criminal record if this is not done. Turner v. State, 897 S.W.2d 786, 788 (Tex. Crim. App. 1995); Welch v. State, 645 S.W.2d 284, 285 (Tex. Crim. App. 1983). When, as here, the error is discovered after the State rests at the punishment stage, the correct procedure is to allow the State to reopen, read the enhancement allegations, take the plea, and reintroduce or stipulate the previously introduced evidence. Welch, 645 S.W.2d at 285. It is error to permit the jury to consider enhancement evidence admitted before the entry of the defendant's plea. Id.

The State urges that Mendez failed to preserve this matter for review by failing to object to the officer's testimony when it was offered. We disagree. Welch makes it clear that an objection at any point during the penalty stage is sufficient to preserve the error and require the corrective action prescribed in that opinion. And more recently, the court of criminal appeals has held that when, as here, the enhancement allegations are not contained in the indictment, the failure to read them at the start of the penalty stage does not put the defendant on notice that "the proceedings may have gone amiss" and thus no objection is required at that time. Marshall v. State, No. PD-2016-04, 2006 Tex. Crim. App. LEXIS 360, at *9 (Tex. Crim. App. Feb. 15, 2006).

The failure to timely read the enhancement allegations and take Mendez's plea was brought to the attention of the trial court and the State at a time when it was possible to correct the error. At that point, the State was obligated to either abandon the enhancement allegations or to correct the error in the manner prescribed in Welch. Although the State belatedly read the enhancement allegations and Mendez entered his plea, the State failed to reoffer its evidence as required by Welch. We hold that Mendez did all that was required to preserve this error for appeal and that no further objection was necessary.

In Turner, the court held that harmless error analysis was inapplicable to error of the sort presented here. Turner, 897 S.W.2d at 789. The court has since held, however, that except for a narrow group of federal constitutional errors, no error is categorically immune to a harmless error analysis. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (overruling "any other decision [that] conflicts with the present opinion"). We therefore turn to the question of whether Mendez's substantial rights were affected. See Tex. R. App. P. 44.2(b).

The only evidence that Mendez had been previously convicted was introduced before he entered his plea to the enhancement allegations. This evidence was not properly before the jury, and it is clear that the jury's consideration of this evidence for the purpose of enhancement harmed Mendez. Welch, 645 S.W.2d at 285. Because there was no properly admitted evidence to support the enhancement allegations, the jury should have limited its deliberations to the range of punishment applicable to an unenhanced second degree felony: two to twenty years. See Tex. Pen. Code Ann. � 12.33 (West 2003). Although the punishment assessed was within that range, we cannot assume that the jury was uninfluenced by the first degree felony punishment range it was improperly authorized to apply. We are not satisfied that the jury would have assessed the same twenty-year punishment had it known that this was the maximum applicable penalty. We therefore conclude that the error affected a substantial right.

Because the error relates to punishment only, we will reverse and remand for a new punishment determination. Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2005). We note that the error does not have double jeopardy implications and the State may seek an enhanced punishment upon remand. Welch, 645 S.W.2d at 286; see Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999).

The judgment is reversed and the cause is remanded for a new punishment hearing.

Before Chief Justice Law, Justices B. A. Smith and Pemberton.

Reversed and Remanded

Publish

We have some basic procedures, such as joining issues, that keep proceedings on course and ensure their reliability. How far do we excuse errors before we completely lose the structure of the criminal justice system and, thus, its integrity? It is a regretable reversal but one easily prevented. As much as I favor harmless error, it must have some limitations. Tough break, but maybe the CCA can fix it.

[This message was edited by John Stride on 06-19-06 at .]

The law needs to change. If the court does not make inquiry as to the defendant's plea it should be presumed to be "not guilty" or "not true". This qualifies as a technicality. Notice of the prior conviction was included in the indictment. The only reason to solicit a plea from the defendant as to the enhancement allegation should be to save some time and evidence as to his prior conviction. How is the defendant harmed if the evidence is available at re-trial?

Since the prior convictions need not be alleged in the indictment (Brooks, 957 S.W.2d at 34), why must the issue be first joined. This evidence was relevant under art. 37.07 sec. 3 at the time it was offered. More to the point, how does one join the issue where there are no enhancement paragraphs to read? Welch no longer makes sense.